State v. Jacqueline R. Robinson

Plaintiff-Respondent, Wisconsin, State

v. Jacqueline R. Robinson, Defendant-Appellant-Petitioner.

Supreme Court argument September No. 2011AP2833-CR. Oral Decided June 2014 WI 35 (Also 352.) reported in 847 N.W.2d defendant-appellant-petitioner, For the there were by public Haskell, briefs Dustin C. assistant state argument by defender, and oral Dustin C. Haskell. plaintiff-respondent, argued by For the the cause was attorney general, Lynn Larson, Sara assistant with attorney general. Hollen, whom on the brief was J.B. Van by An amicus curiae brief filed Ellen Henak and S.C., Henak Law Milwaukee, on behalf of Wis- Office. Lawyers. consin Association of Criminal Defense ¶ 1. MICHAEL J. GABLEMAN,J. This ais review unpublished appeals1 of an decision of the court of affirming County a decision and order of the Milwaukee denying Jacqueline Circuit Court2 defendant R. (Robinson) post-conviction Robinson's motion to rein- original state her sentence. question

¶ 2. The before us is whether Robinson's protection against jeopardy constitutional double was violated when the circuit court increased her sentence day initially imposing argues one after it. Robinson day the circuit court's decision to resentence her one 1 Robinson, 2011AP2833-CR, State v. unpublished No. slip (Wis. 2012). op. App. 23, Ct. Oct. 2 The Honorable Paul R. Van Grunsven presiding.

353 imposed original both violated was her after protections against federal constitutional state and expecta- legitimate jeopardy had a she because double finality The State sentence.3 in her tion of expectation legitimate had no Robinson contends that consequently, finality constitutional Robinson's and, of jeopardy against protection was not violated. double reasoning States v. of United Under the L. Ed. 2d 117, 426, 101 S. Ct. DiFrancesco, 449 U.S. (1980) Jones, forth in State v. the factors set App 844, 163, 2d 650 N.W.2d we 208, 257 Wis. 2002 WI legitimate expectation of a did not have hold Robinson appropriately finality court acted and the circuit Accordingly, resentencing we affirm Robinson. appeals. HISTORY AND PROCEDURAL I. BACKGROUND appeal are undis- relevant to this 4. The facts January puted. 2011, Robinson was arrested for On driving privileges operating her while a motor vehicle loitering, suspended, for for violation were police probation. station for taken to the Robinson was police police processing. officer con- station, At pill Robinson and recovered bottle ducted a search of pills.4 suspicion containing Alprazolam Due to Robin- hiding might narcotics, additional Robinson son be police officers con- a bathroom and two escorted to DiFrancesco, v. 449 U.S. 101 S. Ct. In United States (1980), Supreme the United States Court 66 L. Ed. 2d 328 in the legitimate expectation has a held that if a defendant sentence, then an increase in that sentence finality of her jeopardy. violates double 4 Xanax, prescrip generic ingredient in a Alprazolam is anxiety medication, is a Schedule IV controlled tion which 961.20(2)(a)(2009-10). § substance. See Wis. Stat.

354 person. During further search ducted a of Robinson's police pill search, this officers recovered a second containing Oxycontin pills.5 point, bottle At this struggle police struck ensued. Robinson one of the jaw forehead, officers on the officer's and and kicked the police second officer twice on the officer's left knee. January 22, 2011, 5. On the State filed a crimi- complaint charging nal possession Robinson with one count of drugs,

of narcotic in violation Wis. Stat. (Count § 961.41(3g)(am)(2009-10)6 One), and two battery officer, counts of to a law enforcement 940.20(2) (Count § violation of Stat. Wis. Two and Three). Count April 12, 2011, 6. On Robinson the State plea agreement. plea

entered into a agreement, Pursuant to the pled guilty Robinson to all three counts. January 19, 2011, 7. Robinson's arrest on not her first encounter with the law. At the time of her probation pleading guilty arrest, Robinson was on after charges County to three criminal Waukesha 2008.7 charges comprised Those three criminal were of two receiving property equal counts of stolen less than or 943.34(l)(a) (Wauke- § $2,500, in violation of Wis. Stat. 08-CM-1636) County sha cases 08-CM-2563 and possession narcotics, one count of intent with to deliver 961.41(lm)(a) (Waukesha § in violation of Wis. Stat. 08-CF-518). County case Sentence on the Waukesha County placed cases was withheld and Robinson was on 5 Oxycontin (Oxycondine) II is Schedule controlled sub 961.16(2)(a)ll (2009-10). § stance. See Wis. Stat. subsequent All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. part plea agreement charges, As of the for the 2008 eleven charges global were dismissed and read-in to a sentence for the three other criminal convictions. probation. jail years No time was ordered as

three probation. that condition of County in a result of her arrest Milwaukee 8. As January from 19, 2011, Robinson was revoked on County probation cases. On on all three Waukesha County April Court, Circuit 6, 2011, the Waukesha presiding, Domina, J. sentenced Honorable William years initial confinement and four Robinson to two years supervision For extended for case 08-CF-518. County 08-CM-1636, cases 08-CM-2563 and Waukesha nine initial confine- Robinson was sentenced to months count, each sentence to run concur- ment for each with imposed for case 08-CF-518. rent with years sum, the circuit court sentenced Robinson to two years probation initial confinement and four as a of consequence (collec- probation of the revocation of her sentences"). County tively, "Waukesha County May 10, 2011, 9. On the Milwaukee Judge Court, Grunsven, the Honorable Van Circuit presiding, sentencing hearing held a for Robinson for hearing began One, Two, Counts and Three. The with joint making the State and Robinson recommendation any imposed that sentence the circuit court be concur- County rent with the Waukesha sentences. The State prior recited Robinson's criminal record and the factual background charges. that led recent to Robinson's most explained charges that, The State eleven had previously and read-in been dismissed for three other County and had convictions Waukesha Robinson only probation received for those three offenses. The explained probation further had State Robinson's years been revoked she had been sentenced to "two custody years supervision." The four extended impose recommended that the circuit court not State any additional incarceration time for Robinson's most recent plea agreement One, for Counts Two, and Three. 10. Prior to sentence on imposing those counts, Van Judge Grunsven noted that "much of what [he] read in the complaint [was] absolutely be- despicable havior." At one point during the sentencing he hearing, addressed the defendant directly:

Quite frankly, in your character, relation to this Court litany considers the of cases that were dismissed part read-in plea negotiations as of the out in Waukesha everyone and while say seems to Jacqueline that has corner, turned the I think history and violation of laws of the give great concern, state me cause for despite the fact been probation she's off of she's been revoked and I also see her as a society. threat to continuing She is crimes, to commit despite the fact she pending charges, has leading to the bail jump charge and other just, cases and I while she indicates that she's now clean and going sober and to take opportuni- seriously, ties I'm not so certain.

I think she ahas vicious addiction that going is to be a life-long struggle. I consider Judge the fact Domina years ordered a sentence of two years and four out after she was revoked and returned to him for sentenc- ing. I do need to consider that.

I also look at pled the fact she guilty, accepted has responsibility. I also look at protect the need to public. 11. After remarks, his Judge Van Grunsven sen-

tenced Robinson on Count One to months Wisconsin State Prison System, consisting 18 months initial confinement and 24 months extended supervision, concurrent with any other sentence. On Counts Two and Three, Judge Van Grunsven sentenced Robinson to 60 consisting System, State Prison

months the Wisconsin and 36 months ex- initial confinement of 24 months any supervision, other sentence. concurrent with tended Judge ordered that the sentences Grunsven Because Van County sentences, the Waukesha run concurrent with effectively no additional incarceration received Robinson being Two, and Three. One, sentenced on Counts after day,May 2011, the circuit court The next Judge sponte the case. Van Grunsven recalled sua hearing, he did some research on after the stated that (CCAP) Programs Automation the Consolidated Court Specifically,the court he made a mistake.8 and realized mistakenly the Waukesha it believed remarked currently serving County Robinson was sentences years initial incar- and nine months amounted to two only sentenced to in fact she had been ceration, when years. Judge explained: Grunsven two Van subsequent hearing of the and.

At the conclusion I and I realized thereto the Court did some research proposed yester- I split made a The sentence mistake. a intent as far as fair day did not reflect this Court's in this case. sentence regard to a number of lengthy

There a record with was County and I and mis- cases in Waukesha mis-heard that handed down. noted some of the sentences were 08CM1636, Receiving in the Stolen Specifically which case, months. It Property given Ms. Robinson was nine (CCAP) Program is The Consolidtaed Court Automation the Wisconsin technology department the information within manage created a case director of State Courts Office. CCAP county many circuit courts and records system ment for the by public through the Wiscon system can be accessed (WCCA) website, via the internet. sin Circuit Court Access my impression mistaken that she said the nine months was consecutive and tacked on to the 24 Judge months that Domina Quite ordered in that case. frankly a review of CCAP subsequent to yesterday's hearing revealed that in fact the nine months in that case was concurrent to 08CF518 and 08CM2563.

In fashioning case, this the Court does look at the gravity offense, of the the defendant's character and need protect public and yesterday my I started sentencing arguments by talking about despicable how by behavior was Ms. Robinson in this case in terms of her reactions and interactions with police officers this case. In fashioning a sentence the Court does need to look at probation probation is not appropriate. The court prior considers record of convictions and the court does look at period of incarceration and believes it is necessary to accomplish objectives good sentenc- ing, which gravity offense, is the of the the defendant's character and need to protect public.

Given all of that and harkening back to the comments made yesterday, I asked this case be called back so I can re-state and announce the sentence I wanted to achieve yesterday.... Judge Van Grunsven then modified

Robinson's sentences for Counts Two and Three. For both Counts Two and Three, Judge Van Grunsven in- creased Robinson's sentence from 60 months, consisting of 24 months initial confinement and 36 months ex- tended supervision, to 69 months, consisting of 33 months initial confinement and 36 months extended supervision, to run concurrently any with other sen- tence. The effect of Judge Van Grunsven's modification of Robinson's sentences for Counts Two and Three was a nine-month increase in Robinson's time of incarceration. filed a 14, 2011, Robinson

¶ 14. On November seeking postconviction of the sen- restoration motion postconvic- May imposed Robinson's 10, 2011. tence on both the circuit court violated asserted that tion motion against protections and federal constitutional her state May jeopardy 11, her on it resentenced when double postconviction noted motion, Robinson In her illegal May nor neither 10, 2011, sentence was that the clearly the court record established and the incorrect existing Instead, sentences. Robinson's understood argued "increased the sen- the circuit court Robinson original guessing upon of its mere second tence based right to be Robinson's and therefore violated decision" jeopardy. free from double postconviction court denied the 15. The circuit jeopardy finding of the double motion, no violation App Relying Burt, 126, 237 on State v. 2000 WI clause. that the circuit court found 2d 614 N.W.2d Wis. increase[d] sentence defendant Robinson's it had "not upon under because the court was reflection but instead County impression her about Waukesha a mistaken sentence." per appeals curiam The court of issued affirming holding circuit court, the circuit

decision jeopardy protec- did not violate Robinson's double The court of it increased her sentence. tion when sentencing "[a] appeals recognized court violates imposed previously jeopardy it increases a when double expectation legitimate if the defendant had a finality Robinson, No. in the sentence." of slip op., unpublished ¶ 3. The court 2011AP2833-CR, appeals had held the noted that in Burt the court right an individual's court did not violate changed jeopardy a sen- it free from double when be " 'slip day later the same in order to correct tence tongue.'" (quoting Burt, Id. at 237 Wis. 2d 610, 12). comparing the facts of Burt to the facts of appeals Robinson's case, the court of noted that only day "Robinson served one of her sentence when the circuit court realized its mistake . . . and recalled Robinson to increase her sentence." Id. The court of appeals "[t]he reasoned that difference in time between the circuit court's action in Burt and the circuit court's days." action here is a hours, matter of not Id. at appeals acknowledged The court of expectation that "Robinson's finality in the of her sentence was not illegitimate," yet but concluded "the sentence did not degree finality prohibited have a the circuit correcting day court from its own mistake the after the sentencing." initial Id. petitioned

¶ 17. Robinson this court for review of appeals. the petition accepted decision of the court of We February on 12, 2013.

II. STANDARD OF REVIEW ¶ 18. The sole issue in this case is whether protection against jeopardy Robinson's double was vio by lated the circuit court's decision to increase day Robinson's sentence the after her imposed. was "Whether an individual's constitutional right jeopardy to be free from double has been violated question is a of law that this court reviews de novo." Anderson, State v. 739, 746, Wis. 2d 580 N.W.2d329 (1998).

III. DISCUSSION question ¶ 19. The before us is whether protection against Robinson's constitutional double jeopardy circuit increased violated when the initially day imposing Robinson after it. her sentence one argues her decision to resentence that the circuit court's day original imposed violated her sentence was one after protections against her state and federal constitutional legitimate expectation jeopardy had a double because she finality The contends her State of in sentence. finality legitimate expectation of that had no Robinson protection consequently, constitutional and, against Robinson's jeopardy was not violated. double arguments fully ¶ 20. In order to understand the by parties, briefly put law the case forth we review arguments upon are based. which their States 21. The Fifth Amendment to United being protects an individual from twice Constitution put jeopardy The Double in for the same offense. Jeopardy Amendment the United Clause of Fifth any person "[N]or shall be states, States Constitution subject put jeopardy in to the same offence to be twice Maryland, 784, In Benton U.S. 89 of life or limb." v. 395 (1969), guarantee Ed. 2056, S. Ct. 23 L. 2d 707 this against jeopardy against held enforceable double through Amendment. The the states Fourteenth guarantees protection Wisconsin Constitution also 8(1) § jeopardy. in I, states, from double part, Article relevant person may put "[N]o for the offense be twice same jeopardy punishment. protections . . ."Because the of provisions by coextensive, afforded these are Wisconsin traditionally them v. courts have treated as one. State Gruetzmacher, 21, 585, 271 679 55, 2004 WI Wis. 2d N.W.2d533. guarantee against jeopardy

¶ 22. The en- double separate compasses protections. three constitutional Pearce, 711, S. Ct. 717, North Carolina v. 395 U.S. 89 (1969). protects against 2072, 23 Ed. L. 2d "It prosecution acquittal. second for the same offense after protects against prosecution It a second for the same protects against offense after And it conviction. mul- punishments tiple prohi- for the same offense."Id. The bition at issue this case concerns an individual's protection against multiple punishments. DiFrancesco, 117, 449 U.S. the United Supreme appropriate inquiry

States Court held that the protections under the third of these constitutional is legitimate expectation whether the defendant has a finality legitimate in her sentence. If a defendant has a finality expectation sentence, in her then an increase jeopardy. 437-38; violates double Id. at Thomas, 376, see also Jones v. 491 U.S. S. Ct. (1989) (Scalia, dissenting) L. 105 Ed. 2d 322 J., ("It is from clear .. . when DiFrancesco a sentence proceeding, application is in a increased second the of jeopardy the double clause turns the on extent and legitimacy expectation finality of a defendant's of in legitimate expecta- that sentence. If a defendant has a finality, of an tion then increase in that sentence is prohibited.") Supreme

¶ 24. The in Court DiFrancesco elabo- underlying Jeop- on rated the rationale the of Double ardy Clause:

The prohibition against jeopardy' constitutional 'double was designed protect being to an from individual sub- jected the possible to hazards of trial and conviction more an alleged than once for .. The under- offense.. idea, lying deeply ingrained one that is in at the least Anglo-American system jurisprudence, of the is that power State with all its and not resources should be repeated attempts allowed to make indi- to convict an offense, an alleged thereby subjecting vidual for him to embarrassment, expense compelling ordeal and and continuing anxiety in of and insecu- him to live a state possibility that even rity, enhancing well the as as may guilty. though innocent he be found (quoting v. DiFrancesco, U.S. at 127-28 Green States, 221, 2 184, 187-88, 78 S. Ct. United 355 U.S. (1957)). L. 2d 199 Ed. that, The noted while these consider- 25. Court regard reprosecution after are rational with

ations acquittal, they "significant application not have do [of] Id. at The in the . a sentence." 136. Court .. review acquittals concluded that sentences DiFrancesco very jeopardy purposes. are different for double While acquittal Jeopardy final the renders an Double Clause for unreviewable, the same does not hold true qualities "[A] not sentences. sentence does have finality acquittal." an Id. at constitutional that attend Consequently, Jeopardy 134. "the Double Clause does any provide right to know at not defendant with specific limit his moment time what exact punishment Id. 137. will turn out to be." at Gruetzmacher, As this court observed Supreme of the States Court's decision "issuance United changed jeop- landscape in ardy of double DiFrancesco Gruetzmacher, cases. law" 2d "After DiFrancesco dismissed the Wis. per against modifying that there rule notion se sentence, the idea that modification to increase sen- already being ran of the double tences served afoul jeopardy longer Id. clause no sound." Under was interpretation Jeopardy of the Double DiFrancesco's unquestionably Amendment, it of the Fifth is Clause modify permissible, contexts, in certain review already- defendant's sentence after the defendant has serving begun originally-imposed sentence. Following ¶ DiFrancesco, 27. several cases in Wis- consin have considered whether sentence modifications protection against jeop- violated a defendant's double ardy legitimate expectation due to the defendant's finality in her sentence. appeals

¶ applied Burt, 28. the court of rationale set forth in in DiFrancesco a case where the misspoke during sentencing circuit court and sentenced the defendant to concurrent sentences rather than consecutive. The circuit court became aware of the co-conspirator mistake when it sentenced Burt's imme- diately after Burt. The circuit court called day Burt back into the courtroom the same and modi- appeals fied the sentence. The court of held that "the protections against jeopardy double were not violated speech when the trial court realized it made an error of pronouncing in Burt's sentence and took immediate steps judgment to correct the sentence before the conviction was Burt, entered into the record." appeals 610, Wis. 2d 11. The court of reasoned that already "Burt had been convicted and was not faced expense, with the embarrassment, and ordeal or con- anxiety insecurity by tinued state of peated attempts caused re- (internal quotation

to convict him." Id. omitted). appeals marks The court of concluded that, simply correcting where the circuit court was an error speech pronouncement in the of the sentence later in day imposed, the same sentence was finality significant defendant's interest "is not a concern." at Id. App Willet, In State v. 2000 WI 212, appeals

Wis. 2d 618 N.W.2d the court of question presented examined the same legitimate the defendant had is, whether Burt —that original finality expectation sentence —and in his of modifying in its circuit court erred that the concluded original already begun had the defendant sentence after initially serving in deter- circuit court Willet it. The three sentences for convic- mined that the defendant's consecutively law, be served not, could under tions four the defendant was to receive a sentence that days probation Willet, was revoked. later his when App later, the circuit court 2. Four months WI defendant's initial sentence was concluded understanding of the law and based on an erroneous they consecu- so that were modified the three sentences ¶ 1. The court of later sentence. Id. at tive to the concluding appeals court, circuit the de- reversed the finality legitimate expectation of under fendant had a Id. the circumstances. appeals that, reasoned 30. The court of Willet Burt, resentenced on the defendant in "who was

unlike already serving day, had been his the same Willet changed trial court for four months when the ¶ Also, Id. at it from concurrent to consecutive." emphasized appeals Burt, unlike that, the fact court of by clearly "slip tongue" the circuit not a of the this was Instead, the circuit court misunderstood court. Id. attempted later, to "seek a stiffer law, and, four months appeals concluded Id. The court of sentence for Willet." finality legitimate expectation had a that Willet jeopardy "[t]he sentence, and that double clause the prevents going back, from four months the trial court Id. later, to redo the sentence." App Jones, 208, v. 2002 WI State light provided appeals, DiFrancesco, court of analyzing right a defendant's framework for whether jeopardy been violated when he free from double has be already is resentenced after an sentence has imposed. principles been Jones distilled two from Di- concerning may Francesco the issue of whether a court begun increase a sentence after the defendant has serving per longer the First, sentence. se rule no prohibiting increasing exists a court from a defendant's begun sentence after the defendant has to serve the " App '[i]f Jones, ¶ 208, Second, sentence. 2002 WI 9. legitimate expectation finality [in defendant has a of sentence], then an increase in that sentence is by prohibited jeopardy (quoting the double clause.'" Id. (D.C. 1987)). Fogel, United States v. 829 F.2d Cir. corollary principle, The to that second however, is that legitimacy "if a circumstance exists to undermine the of expectation, may permissibly that then a court increase the sentence." Id. appeals

¶ 32. The court of Jones further noted precedent long recognized that Wisconsin has that "the application jeopardy of the double clause to an increase legitimacy in a sentence turns on the extent and of a expectation finality defendant's of in the sentence." Id. appeals ¶ at 10. The court of then concluded that legitimate expectation whether a defendant has a of finality analytical jeop- is "the touchstone of double ardy may by many . , . . which be factors, influenced completion passage sentence, such as the of the pendency appeal, time, anof or the defendant's obtaining misconduct in sentence." Id. applied

¶ Gruetzmacher, 33. In this court the non- exhaustive list of factors set forth in Jones to determine modifying whether the circuit court erred in initially defendant's sentence two weeks after it was imposed. originally Gruetzmacher, the circuit court sentenced the defendant to 40 months initial confine- charge. battery Gruetzmacher,

ment for a substantial hearing, sentencing During the initial 7. 2004 WI incarceration 40 months indicated that the circuit court appro- period believed was the court the minimum was priate consequence Id. at defendant's actions. of the as a day, that court realized the circuit Later the same felony battery charge E was a Class the substantial 24 months. initial confinement carried a maximum Realizing ex- that the 40-month at Id. imposed for could be amount that ceeded the maximum attempted contact the offense, the circuit court the parties hearing. parties The Id. to schedule another days Id. When until two later. to reconvene were unable explained parties reconvened, the circuit sentencing parties and scheduled a new to the error hearing Id. At the new weeks later. for two hearing, Gruetzmacher's sen- the circuit court modified serving 24 months initial confine- that he was tence so battery charge. ¶ Id. at 11. ment on the substantial Additionally, sen- court modified another the circuit jumping bail from was to serve for tence Gruetzmacher years probation confinement, initial to 40 months of battery with the substantial all to run concurrent resentencing charge. did not increase effect, Id. In the originally imposed, incarceration time the amount of the substantial 40-month sentence from but shifted the jumping charge. battery charge to the bail Gruetzmacher, that the this court noted 34. immu- in Jones illustrate "there is no factors set forth prohibiting sentence increases once defen- table rule begun the Instead, the sentence. has to serve dant light in of the circum- factors must be evaluated Jones particular Id. at 34. We then in each case." stances record indicated the circuit observed that clearly the appropriate 40 months was the stated that considering lengthy- for Gruetzmacher his sentence prior conduct, and criminal record violent and con- appropriately. cluded the circuit court acted Id. at stressed that the circuit court discovered the We error day parties on the same and the recon- days later to address the matter. at vened two Id. Additionally, steps keep the circuit court took to Gru- entering system prison etzmacher from sentencing until the "[t]he corrected, error fact that the was system yet justice begun upon as a whole had not to act important the circuit court's sentence is an fact that emphasis." Moreover, bears Id. this court reasoned that upon where, Gruetzmacher "was not a case mere reflec- [the tion, the circuit court decided increase . . . Accordingly, defendant's] Id. sentence." we concluded legitimate expectation did "Gruetzmacher not have a finality" appropriately and that the circuit court acted resentencing him. Id. argues

¶ 35. The that State Gruetzmacher and analogous present Burt are facts of the case. The Burt, that, State contends like there Gruetzmacher very passage limited time between when imposing original circuit court erred in argues Further, it recalled the and when case. the State misspoke imposed Burt, the circuit court when it stating sentence, the defendant would serve "concurrent" sentences when the circuit court say Similarly, intended to "consecutive" sentences. argues that in the instant case the circuit court State misspoke it first sentenced Robinson due to when misunderstanding the nature of how the new sentences prior interact with Robinson's criminal record. would disagrees reading ¶ 36. with the Robinson State's argues of Burt and Gruetzmacher and easily distinguishable both cases are present from the Robinson case. 369 points Burt, the circuit court's intention to that, out in impose concurrent, sentences consecutive, rather than judge's notes, which clear from the circuit argues, Here, Robinson sealed into the record. were suggests nothing in the circuit court misun- the record being imposed at nature of the sentences derstood the original sentencing hearing. the time of the regard Gruetzmacher, Robinson con- 37. With distinguishable present because that the case is tends the law when it the circuit court did not misunderstand imposed original Gruetzmacher, the sentence. illegal changed an circuit court what was initially exceeded the maximum because the court argues unlike that, Robinson allowable sentence. legally Gruetzmacher, Robinson's sentence was nothing suggests imposed in the record the circuit and impose court intended to original a sentence different from argues further sentence. Robinson compared present properly to Willet than it case is more is to Burt or Gruetzmacher. argument agree the State's that this 38. We with analogous

case is to Burt and Gruetzmacher distin- guishable above, As detailed the court of from Willet. appeals factors, in set forth a list of which were Jones adopted applied by Gruetzmacher, this court legiti- a defendant has a that are relevant whether finality expectation her mate of his or sentence.9 9 emphasis that listed in Jones are It bears factors Jones, 10, App State v. 2002 WI 257 non-exhaustive. See added) (emphasis (noting 2d that a Wis. N.W.2d expectation finality in the legitimate "defendant's of sen factors, may by many as the tence . . . be influenced such sentence, time, pendency completion passage of the appeal, obtaining an the defendant's misconduct sen or tence.") However, specifically regarding the other two factors set particularly germane: factors are Here, two Jones (2) (1) passage completion the of the sentence the resentencing. original sentence and time between Burt, the circuit court modified defendant's In day original sentence was on the same imposed. Gruetzmacher, the circuit court realized its day original im- sentence was error on the same day, parties posed, the same scheduled notified days hearing the defendant two later. a to resentence Judge realized hours after sen- Here, tencing Van Grunsven he had misunderstood the

Robinson that County and, because of that mis- sentences Waukesha original understanding, imposing in erred sentence. rectify Judge Consequently, mistake, in order to this recalled and resentenced Robinson the Van Grunsven day. following Gruetzmacher, Like Burt and little time original imposition passed between the of Robinson's resentencing. easily her Willet is distin- sentence and guishable cases, line in that a four-month from this original sentencing gap between the of the existed attempt to recall the defendant and the circuit court's impose greater defendant and a sentence. empha- Additionally, Gruetzmacher, in we determining significant the circuit factor in

sized resentencing appropriately in the defendant court acted system yet justice had not that "the as whole was begun upon act the circuit court's sentence." Upon Gruetzmacher, 2d review of Wis. true in the record, the present we conclude the same holds parties The circuit court notified the it case. original regarding sen- had made a mistake Robinson's Jones, engage parties agree that Robinson did not forth both there any obtaining her sentence and misconduct Accordingly, they apply do not pendency appeal. no of an here. day later, and corrected the sentence one before

tence any judgment fact, had been entered. In of conviction produced reflecting judgment of conviction was ever no originally-imposed Gruetzmacher, See sentence. App ¶ ¶ Burt, 55, 38; 126, 2000 WI 2004 WI against jeopardy (holding protections double "the were the trial court realized it made an not violated when speech pronouncing in Burt's sentence and error of took steps immediate to correct the sentence before the record"). judgment into the of conviction was entered arguments ¶ in 40. Robinson raises a number of distinguish present attempt case an to from Gruetzmacher and Burt. The essence of Robinson's arguments, point:

however, focuses on the same nothing supports in Robinson contends that the record explanation modifying the circuit for court's Robinson's According Robinson, to sentence. sentence the originally imposed circuit and was lawful no misunderstanding of fact is evident from the record. Robinson stresses that in the cases on the State which relies, ing clear in the there is evidence record corroborat- justifications by provided the circuit courts for resentencing. App (noting Burt, See 2000 WI judge's impose consecutive, intention to rather than notes); by supported concurrent, sentences was his (noting judge's original Gruetzmacher that the inten- impose tion to a sentence of 40 months was clear from transcript original sentencing hearing). of the Here, argues, Robinson no such evidence exists the record. problematic, contends, 41. This is Robinson be- nothing cause in the record to a with corroborate judge's explanation resentencing for a defendant after a imposed, judge has a free lawful sentence been will be any previously imposed deliberate on sentence and sua any safeguard modify sponte constitutional it without for the defendant. available jeopardy claims that examine double 42. Cases sentencing present difficult balanc-

in the context of appellate ing hand, On the one it is courts. act for unacceptable defendant's sentence to be seen as for the progress court can add to or that a circuit a work clearly conflict This result would subtract from at will. Jeopardy underlying the Double rationale of with the effectively prevent the State from Clause; is, attempts "mak[ing] repeated an to convict individual compelling alleged him to live offense . . . for an insecurity." anxiety continuing state (quoting Green, 355 DiFrancesco, at 127-28 449 U.S. 187-88). hand, a circuit court the other U.S. On every to a sentence in instance should not be tethered fact, or law, mistake of is on a mistake that based "The Constitution the court's intent. inconsistent with game require in should be a does not immunity by judge wrong for the means move which (quoting prisoner." DiFrancesco, at 135 449 U.S. the Ct. States, 160, 166-67, 67 S. 330 U.S. Bozza v. United (1947)). 645, 91 L. Ed. 818 today approach Accordingly, the we reaffirm 43. adopted by court this forth in Jones

set appropriate for deter- as the framework Gruetzmacher legitimate expecta- mining has a a defendant whether bright finality. line rule these, as tion of cases such simply Gruetzmacher, noted unworkable. As we is light of the factors must be evaluated "the Jones Evaluating the Id. at in each case." circumstances expectation legitimacy of a defendant's extent and largely inquiry finality on that rests is a multi-factor individual case. the facts of each Judge Here, noticed he had Van Grunsven during prior misunderstood Robinson's criminal record original sentencing hearing day on the it the same sentencing hearing occurred and scheduled a new for following day. This not a case the circuit where judge deliberating decided, after further on the imposed, initial sentence length that a different sentence appropriate. Judge Here, was more Van as explained record, Grunsven on he misunderstood lengthy record, criminal Robinson's failed to sentence way intention, in a Robinson that matched his remedy expeditiously possible. acted to the error as as supports explanation, We hold that the record this considering complexity prior of the defendant's history Judge criminal record, as recited on the Van lengthy regarding "despicable" Grunsven's remarks protect nature of Robinson's conduct and the need to public, promptness and the with which the sentence was rectified.10 agree

¶ 45. We with Robinson's observation that the record shows the State and the circuit court cor- rectly prior described Robinson's criminal record and plea agreement the structure of Robinson's before Rob- inson was sentenced. The record of the tencing hearing sen- replete is with references from the regarding prior State and the circuit court Robinson's criminal record and One, how sentences for Counts Two, and Three would interact with the Waukesha County currently serving. sentences she was disagree, however, 46. We with Robinson's con- nothing original tention that exists the record of the addition, In Investigation Report no Presentence produced in Judge this case. Van Grunsven therefore had no explanation previous written of Robinson's sentences. circuit court's expla- to hearing support During Robinson's sentence. modifying nation for May 10, on sentencing hearing Robinson's his concerns Grunsven emphasized Van Judge repeatedly: Robinson's conduct regarding offense, you, gravity I will tell regard to the of With complaint absolutely I read in the is much of what brought are to a behavior. Police officers despicable you relapse and start.. . help you to after scene taking swipes at them ... character, your this Court

Quite frankly, in relation to that were dismissed and litany considers the of cases plea negotiations out Waukesha part read-in as Jacqueline has everyone say seems to and while corner, history and violation of turned the I think the concern, give great me cause for laws of the state probation she's been despite the fact she's been off of society. I see her as a threat to revoked and also crimes, fact continuing despite the she is to commit She charge leading jump the bail pending charges, has indicates that she's just, and I while she and other cases opportuni- going to take the now clean and sober seriously, I'm not so certain. ties conduct was observing After that Robinson's her to be that he considered noting "despicable," Rob- Grunsven sentenced society," "threat Van Judge in a manner that One, Two, and Three inson for Counts beyond additional time of incarceration no provided for the Waukesha imposed that had been already amount Grunsven's Judge Van light sentences. County conduct, we find the Robinson's regarding observations for explanation Van Grunsven's Judge record supports he misunderstood realizing after Robinson resentencing County sen- of the Waukesha length the nature and tences. argues that, in the Robinson without more corroborating explanation

record the circuit court's for modifying sentence, Robinson's we should conclude the way circuit modified the in a that violated right against disagree jeopardy. Robinson's double We for explained First, above, two reasons. as there is we supporting evidence the record the circuit court's justification modifying Second, for Robinson's sentence. argument essentially says that, Robinson's without clear convincing corroborating evidence in the record explanation, reviewing circuit court's court should presume deliberating court, that the circuit after on the imposed, initial sentence decided a harsher sentence appropriate originally would be more than the one imposed. light great intended and of the deference we sentencing courts, afford we decline to create such a presumption. e.g., See, Helm, 277, 290, Solem v. 463 U.S. (1983) ("Reviewing 103 S. Ct. 77 L. Ed. 2d 637 grant courts, of course, should substantial deference to possess sentencing the .. . discretion that trial courts criminals."); Paske, convicted State v. 52, 70, 163 Wis. 2d ("We 471 N.W.2d55 will review for abuse of 27.5(e)(3d ed.) discretion."); § ("Sentencing 7 Crim. Proc. many jurisdictions subject only decisions in are to review for abuse of discretion. In states, some sentences are exacting evaluated under an even less 'shock-the- standard."). conscience' not, course, We do as a matter of presume judges capriciously act without clear evi supporting contrary— dence their Quite actions. taking judges assumption at their word is a fundamental legal system. built into our In the absence of clear contrary, assign improper evidence to the we decline to part motive on the of the circuit court. failing us of to address The dissent accuses agree the dissent's We with

the reflection doctrine. change concerning judicial that, in cases statement jeopardy and reflection are two sentence, double disagree im- with the dissent's doctrines. We distinct regardless plicit of the ar- however, contention, that — by parties guments doctrines must the advanced —both bring attempt always case this be addressed. its doctrine, the dissent ambit of the reflection within the argu- court, this the the issue before mischaracterizes parties, impact by of our and the ments raised holding. petitioned to review this court 50. Robinson rights constitutional her "state and federal

whether by against jeopardy" the circuit were violated double accepted petition on this Robinson's actions. We court's analysis today question on it. Our relies we answer by parties arguments jeopardy advanced the double by jeopardy raised issue in to address the double order just as the or do not cite the defendant. We discuss— parties numerous cases do not cite or discuss—the jurisprudence dissent com- reflection doctrine our altering suggests prehensively or we are reviews Simply put, overruling. wishes to discuss the dissent beyond scope body vitality of law that is of a "Typically, petition in the for review. the issue raised upon appellate themselves not take it courts do develop arguments party's State behalf," aon create and unpublished order, 2011AP2907-CR, Brown, v. No. 2014) (Feb. dissenting), (Bradley, decline and we J. to do so here.

IV CONCLUSION upon discovering court, 51. The circuit its error imposing original Robinson, in promptly sentence for parties.

notified the Robinson was resen- following day. judgment tenced on the The of conviction yet for the sentence had not been entered into reasoning the record. Under the of DiFrancesco and the Jones, factors set forth did we hold Robinson not legitimate expectation finality have and the circuit appropriately resentencing court acted Robinson. Accordingly, appeals. affirm we the court of

By appeals the Court.—The decision of the court of is affirmed. {concurring).

¶ 52. T.PROSSER, DAVID J. This is a requires upon existing close case that some "reflection" precedent. join majority opinion sepa- I the but write rately provide support to for the court's decision.

I heavily ¶ 53. The dissent relies on the reflection explain repeatedly doctrine. To doctrine, the the dissent State, cites Scott v. 54, 64 Wis. 2d 218 N.W.2d 350 (1974), subject. which is the seminal case on the

¶ 54. The Scott case attention, deserves close however, because it created a new rule that did not arise naturally Understanding from Wisconsin case law. Scott puts sentencing a circuit court's "mistakes" in a differ- light. ent charged

¶ 55. Calvin Scott was with armed rob- bery. jury Scott, 64 Wis. 2d at 56. He was convicted at a May immediately trial on 1973, and sentenced to an years, indeterminate term of not more than five which any previously consecutive to be served was to term following day— May imposed 18—the Id. On sentence. sponte, Scott, increas- resentenced court, sua the trial ing to not more than seven term his indeterminate any imposed previously years, to consecutive one-half Id. sentence. sentencing, relied on the court At the initial 56. prior record had no criminal that Scott

the fact robbery, had been knew that Scott but the court armed regardless injury by of life—after conduct convicted injuring alleged shooting robbery his ac- —for complice. offense, Scott had For that at 57 & n.l. Id. already of not indeterminate term to an been sentenced years. Thus, the court's Id. at 57 n.l. than five more robbery produced five-year the armed sentence for years prison projected 57. Scott. Id. at for ten May court, sua on At 8:20 a.m. sentencing hearing sponte, for later ordered a further hearing p.m. day. commenced and Id. At 4:10 by indeterminate sentence increased Scott's the court projected years, bringing time his and one-half two prison years id. at instead of ten. See and one-half 57-58. position: explained its The circuit court night, it became driving home last

When I was I goal accomplished I had clear to me that not matter. ... in the of this out to do set defendant,] I find some tried to sentencing the [In in the involved treating people the two fairness jail already in for . . You were situation the same.. gentleman years. The other matter for five another . .. years for his offense. received ten and of seven the time was a sentence [M]y intent at and you I to seven if sentenced years, one-half because 379 years, I doing very important things, one-half was two thought, you. I but I didn't them communicate giving you

I got less than what Mr. Porter for offense, that, the same and there were for and reasons your gave you just those reasons were favor .... If I years, you receiving year five would be a ten receiving the same as Mr. Porter. But Mr. Porter was years offense, you ten for one serving were ten years for two offenses. That was not fair to the com- munity. my you

So notes indicated that should be sentenced years offense, to seven and this one-half for for robbery. March my yester- And that was intent day always has been. added).

Id. (emphasis 59. On the Scott court appeal reversed the cir cuit court with to the respect sentence. Id. at 61-62. It Foellmi, quoted State v. trial court should not "[a] reduce a sentence on 'reflection' alone or simply because it has thought matter over and has second thoughts. It must base its modification on 'new factors' brought Scott, its attention." 2dWis. at 59 (quoting State v. Foellmi, (1973)). 57 Wis. 2d 582, 205 N.W.2d 144 Then it added:

Logic if precluded dictates that a court is from reducing a reflection, sentence after some later it precluded should also be increasing from a sentence for the same reasons. It would create a double standard to not allow such a permit reduction and to the increase.

A review of the record in the instant case shows that the decision to increase the sentence was based solely on "reflection." Here the court amended the sentence so as to conform the unspoken sentence to its a new opinion does not constitute This in our intent. may court increase a trial upon factor which sentence. defendant's

Id. at 59-60. problems with the Scott

¶ several There are 60. opinion. cases, three State v. court relied on First, the (1968); Denny 461, 159 N.W.2d577

Leonard, 2d 39 Wis. (1970); State, 2d 178 N.W.2d 47 Wis. v. legal All its conclusions. Foellmi, foundation for as problematic. cases are three quoted Leonard as follows: 62. The Scott

Hereafter, resentencing following a second con- on retrial, resentencing, the trial mere after or viction an increased imposing from be barred court shall (1) or come to the sen- events occur sentence unless impo- subsequent to the first attention tencing court's penalty; an increased which warrant sition of sentence (2) affirmatively grounds its states the court increasing the sentence. record for (quoting Leonard, 2d at 39 Wis. Scott, 2d at 64 Wis. 473). related a fact situation Leonard involved Leonard, 2d at 39 Wis. trial. after a second ruling to these been confined Had this court's

464-65. prin- grounded in the sound been facts, it would have solely punished ciple for not be should that a defendant appeal. asserting rights But the court in a successful his resentencings principle because to "mere" extended distinguish good resentenc- some reason" to see no "we said, "the ings Thus, the court at 465. from others. Id. imposing an increased from be barred trial court shall (1) come to the sentenc- occur or unless events sentence imposition subsequent ing to the attention court's first penalty. an which warrant increased . . Id. added). (emphasis language arguably at 473 This is ambiguous judicial in its effect on a "mistake" in sen- tencing. judicial sentencing mistake in Is an "event"? If a mistake is an "event" and the mistake comes "to the subsequent court's attention to the first imposition may sentence," the court increase the judicial However, sentence. if a mistake is not an provision "event," the formulation makes no for correct- ing judicial error if the correction would increase a defendant's sentence. quoted Denny

¶ 64. The Scott court then case judge "A as follows: trial is not free to re-evaluate the by sentence; first he is in effect bound the maximum of previous newly sentence unless new factors or justify Scott, known factors a more severe sentence." 64 544). (quoting Denny, 2d at Wis. 47 2dWis. at Denny ¶ 65. Because also involved a sentence imposed quoted after a trial, second statement was apply intended to in a different context from the situation in Scott. quoted

¶ 66. The court then the "reflection" sen- Foellmi, Scott, tence from 57 Wis. 2d at 582. 64 Wis. 2d by at 59. Foellmi is a curious decision written Justice concurring opinion. Wilkie, Horace W who also wrote a concurring Foellmi, opinion 57 Wis. 2d at 586. The majority opinion. Compare is at odds with the at id. (Wilkie, concurring). with id. at 586-87 J, Chief Justice disagreed Harold Hallows also concurred but with majority's reasoning. (Hallows, Id. at 583 C.J., concur- ring). by Justice Hansen, Connor T. contrast, wrote a concurring opinion, joined by justices, third two other pointedly disagreeing with Justice Wilkie's concur- (Hansen, concurring). rence. at J, Id. by a sentence a La 67. At issue Foellmi was County judge a defendant circuit who sentenced

Crosse burglaries. pled guilty prison Foellmi, he to 16 after judge The sentenced Foellmi to 2d at 574-75. 57 Wis. eight years than concurrent sentences of not more five eight counts. Id. at 575. He then sentenced on the first eight concurrent sentences of not the defendant eight years counts, with than five on the second more consecutively to the count nine to run the sentence for later, Less than two months for count one. Id. returned to La that the defendant be the court ordered Reformatory solely from the Wisconsin State Crosse — Id. initiative —to be resentenced. on the court's explained its undisclosed 68. The court along impose was to a "trial run" sentence intention all ordered back to court the defendant would be which days original sentence, after the of the within 90 prison gates "the clank behind defendant had heard reality prison e.g., experienced life, him" and Straight." Upon example Id. at 576. of "Scared ultimate all 16 sen- return, the court reduced the defendant's years years stated that to three and tences from five through eight with would be concurrent counts two through be concurrent one, ten 16 would count counts nine run consecu- nine, and count would with count stayed tively The court then count one. Id. at 577. with placed the defendant on of all sentences and execution probation. Id. procedure proper? The divided this 69. Was adopted sentence but affirmed the second

Foellmi court happening prevent "trial run" sentences from rules to legislative authorization. the future —at least without inappropriate for stated, "It is Id. at 579-81. The court change imposed sentencing in an make a a court to Id. at are made known." new factors sentence unless 383 quoted passage Supreme 582. The court from the Judicial Court of Massachusetts: inevitably will occur

Occasions where conscientious judge, upon receipt after or probation reflection of new reports information, or other will feel that he has been give weight mitigating too harsh or has failed to due to properly factors which he taken should have into ac- justice count. In such cases interests sound judicial by permitting administration will be served judge trial to reduce the sentence within a reasonable time. (quoting Attorney Superior

Id. Dist. the N. Dist. v. for (Mass. 1961)). Court, 172 N.E.2d Then this court rebutted the Massachusetts court: think the "We goes court A Massachusetts too far. trial court should simply not reduce a sentence on 'reflection' alone or thought because it has the matter over and has second thoughts. It must base its modification on 'new factors' brought to its attention." Id.

¶ 70. No doubt Chief Justice Hallows was miffed by the first sentence because he had cited the Massa approval chusetts decision with in a unanimous deci Hayes sion, State, n.2, 104, v. (1970), 46 Wis. 2d N.W.2d 525 which declared that "a trial court may power change modify exercise its inherent judgments its after the execution of the sentence has adopt year commenced .. . Id. at 101. "We one from being the date of for the time as a time limit within which a motion can be made to have power modify exercise its inherent a criminal sen tence." Id. at 106.

¶ 71. The Foellmi decision was this court's full Hayes retreat decision, from and Scott was the court's effort to treat sentence increases the same as sentence reductions. The court used Scott to make this policy, point, rather than to establish coherent because certainly allowed circuit courts to correct this court the correction benefited a defendant. "mistakes" when early ¶ 72. Examination of Scott and other cases repudiate suggests that reluctant to this was modify judicial authority ap sentences, but it to was permitting judges modify prehensive about trial to their they thoughts whenever had second about sentences seriously discretion of that nature would them. Judicial creating uncertainty system finality, in the undermine possible unfairness to defendants. As a as well as judicial authority modify practical matter, sentences analysis set out in had to be cabined. The new factor State, 280, 288, 234 v. 70 Wis. 2d N.W.2d Rosado (1975), complemented the reflection doctrine described parameters discre in Scott. These cases established for tionary sentence modification. changing However, a sentence after rethink-

ing second-guessing it on the merits is different from or judicial correcting mistake. The a sentence because of evaluating new factor criteria are not suitable for judicial why This is one reason the reflection mistakes. doctrine does not control this case. influ- addition, the Scott decision was by jeopardy. part about double This is

enced concerns notwithstanding there minimal true, the fact that jeopardy opinion. Scott, of double in the See discussion "Jeopardy in a 2d at 58. The Scott court stated: 64 Wis. sense has not attached said constitutional (citations omitted). could be increased." Id. Justice was still a member 75. Chief Hallows Hayes case, In the

the court when Scott was decided. Hallows wrote: Justice (1931)] Benz, pointed v. 282 U.S. 304 out

[United States after power change lack of a sentence so-called question the thereof was not a of commencement jurisdiction power or the of the court but the result of theory change that to a application of sentence question jeop- after commencement raised a of double However, ardy. question only can arise if the this increased; question sentence is there is no of double jeopardy length is where shortened. 2d at 101. Hayes, Wis. North, was cited in State v. 91 Wis. 2d Hayes (Ct.

507, 509-10, 1979), App. 283 N.W.2d 457 where the court of said: appeals sentence, begins serving

Once a criminal defendant situations, may, properly modify in certain or correct the sentence. Modification to correct jeopardy provisions flaws runs afoul of the double when amending already court seeks to increase sentences being served. Supreme

[The Court] Wisconsin has stated that double jeopardy modifying situations arise in sentences when the sentence is enhanced or increased. (footnotes omitted) 101).

Id. 46 Wis. 2d at (citingHayes, majority 77. The here opinion emphasizes DiFrancesco, (1980), United States v. 449 U.S. 117 years which was decided ten after and one Hayes year after North. DiFrancesco "changed landscape Gruetzmacher, double law." State v. jeopardy 2004 WI 30, 271 Wis. 2d 679 N.W.2d 533. DiFrancesco said:

Historically, pronouncement of sentence has finality acquit- never carried the that attaches to an law, English [Under tal. . . . common trial the] court's sentence, long place during increase of a so it took as court, permitted. practice term of This the same thought any jeopardy prin- double was not to violate important present The common law is in the ciple. context, Jeopardy for our Double Clause was drafted protections the common-law in mind. with repro- jeopardy The double considerations bar acquittal prohibit after an do not of a secution review sentence. provide Jeopardy

The Double Clause does not any right specific defendant with the to know at mo- punishment limit ment in time what exact of his turn out to be. will (citations

DiFrancesco, 133-34, 449 U.S. at 136-37 omitted).

¶ 78. disavowed the "dictum" in DiFrancesco Benz, 307, 282 at to the effect that the federal U.S. barring practice an increase in sentence after service constitutionally began of the sentence was barred. DiFrancesco, U.S. at 138. This disavowal removed Hayes 449 comments in the foundation for this court's appeals Indeed, and the court of decision North. language from North that Gruetzmacher withdrew judges greatly impeded ability of circuit would have Gruetzmacher, 585, 2d to correct mistakes. 271 Wis. ¶ 35. post-

¶ 79. discussed several Gruetzmacher Jones, Wisconsin, from State v. DiFrancesco cases App 163, 844, v. 208, WI 257 Wis. 2d 650 N.W.2d State App Willett, 621, 2d 618 N.W.2d 212, 2000 WI 238 Wis. App Burt, 610, 881, 126, 237 Wis. 2d and State v. WI together, 42, which, make the Scott case 614 N.W.2d respect quickly-addressed judicial mis outmoded with takes. does not that sen- require 80. "The Constitution

¶ by in which a move game wrong should be tencing for the Bozza v. United judge immunity prisoner." means (1947). States, aphorism 330 U.S. 166-67 This and pro- in both DiFrancesco Gruetzmacher quoted See judicial in the review of "mistakes." guidance vides DiFrancesco, Gruetzmacher, 2d 135; 449 U.S. at 271 Wis. 29.

II Human make mistakes. Even beings judges. Psy- Freud once lectured on "The Sigmund very of Errors" —"certain which are chology phenomena heeded, familiar and little very very frequent, to do inas- nothing pathological, which have with they every much as can be observed normal person."1 Freud said:

I refer to the errors which an individual commits—as example, speech say he for errors of which wishes to word; something wrong and uses the or those which may happen writing, may to him in and which he or not notice; misreading, in or the case of which one reads print writing something or different from what is actually phenomenon A there. similar occurs those one, mishearing cases what is said to where there is organic auditory question no of an disturbance of the function. Another series of such occurrences is based on forgetfulness forgetfulness on a which not is —but permanent, temporary, but as for instance when one always cannot think of a name which one knows and recognizes; forgets carry project or when one to out a at later, proper again time but which one remembers only forgotten and therefore has a certain for interval. added.) (Emphasis 1 Freud, Sigmund A Psychoanalysis General Introduction to (G. 1920). Stanley trans., Liveright, Hall Boni & Inc. buy explanation

¶ 83. One need not into Freud's phenomena acknowledge they of these exist. For beginning instance, in case, this at the of the hearing, there was discussion between the court and attorney: the defense

[THE COURT:] State and Rypel making joint Mr. are recommendation of concurrent time ato sentence she's currently serving in County. Waukesha Is that correct? MR. RYPEL: Yes.

THE COURT: Matter is here for sentencing. I trust I enlightened will be serving as to what she's in Wash- ington I and will hear from the State. added.)

(Emphasis Washington The reference to County slip-of-the-tongue, is a classic to which no one responded. Did counsel mishear what the court said? Or disregard did counsel what the court said? my view, In neither constitutional law nor public policy

sound demands that a defendant benefit judicial sentencing. from an authentic mistake in The challenge appellate reviewing for an court in a sentence identifying modification is an authentic mistake that may change position be corrected from a based on requires prerequisite reflection that a new factor as a modification. North, the court sentenced a defendant

for one count of misdemeanor theft and one count of uttering forged felony. check, North, which was a penalty Wis. 2d at 508-09. The maximum for misde- county jail, meanor theft was six in months or a fine penalty $200, of or both. Id. at 509. The maximum for forgery-uttering years prison was ten in or a fine of Inexplicably, $5,000, or both. Id. the court sentenced years prison North to and two one-half on the theft forgery charge, on months concurrent and six objective charge. Id. The court's —two prison years prison clear, but the one-half —seems wrong mistakenly, assigned, of- to the sentence was attempted to correct the court fense. Id. When Id. it reversed. later, months was several "obviouserror" 511. at my in North court's error

¶ view,the circuit In 86. have court should and the circuit indeed "obvious" was permitted to correct it. been obvious. ¶ all errors are so However, not 87. a defen- Burt, court sentenced ¶ the circuit 88. (1) party a crime of felonies: dant on three serious (2) party first-degree to a crime of homicide; reckless by robbery attempted force; and of the use armed (3) robbery by party of force. threat crime of armed to a imposing sentence, the 1. In Burt, 2d 237 Wis. said: circuit court homicide], [first-degree reckless one

As to count the Wisconsin state Burt, you're sentenced to Mr. forty years. period prison system for three, you're to Wiscon- count sentenced As to that. system for—Let me correct prison sin state robbery], you're [attempted armed As to count four system for a prison state to the Wisconsin sentenced twenty years. term of concurrent robbery], you're sen- [armed three As to count probation consecutive a term of consecutive tenced to years term of seven and four for a to both counts one stayed. forty years imposed is and a sentence of (brackets original). Id., morning on the Burt sentenced Burt's court sentenced Later, Id. March Anthony Id., ¶ 4. Sandifer's Sandifer. co-defendant, attorney immediately objected to sentence, Sandifer's asserting longer 40-year that it was much than Burt's responded by calling sentence. Id. The circuit court Burt back to the courtroom for a corrected sentence. explained: The court

I'm going place my to original notes in a sealed envelope in appellate the file for purposes, my but uncom- may and sentences not be tences concurrent the court case, of this pendency mon. the During in State v. No. Maxcey, received a for review petition (Wis. App. Ct. 2012AP1988-CR, slip op. unpublished the a that included July 2013),2 sentencing dispute following colloquy: think, I do Maxcey,

THE ... I Mr. that COURT: you separate for and I am have to sentence four crimes am, however, going your I to going to do that. make you the confinement that confinement concurrent to serving you get any now and it. are don't credit for you Because committed armed robberies without these I gun, going you years to sentence to three am robberies, it time on each the armed so confinement be That years should a total of twelve of confinement. you serving years be to the five are would consecutive me, makes length but that of time that sense to is given the of the nature crime— thought you I it was

[DEFENSE COUNSEL]: said going to be concurrent. say years

THE Did I COURT: consecutive? Three am say, to—this is what I meant I consecutive read-ins; sentencing [you] on one count with three the years bottom number is there are line twelve because here, considering that I am it be crimes but will four serving. he Does that concurrent is explain it?

[DEFENSE Yes. COUNSEL]: added) (brackets original). Id. (emphasis being solely cited not as This case is for facts and authority. or precedent Maxcey,

¶ 93. Burt both a circuit court judge misspoke attorney judge but an alerted to the promptly error and the was error corrected. difficulty present ¶ 94. The in the case is that it "mishearing" involves an error of than rather the more misspeaking. familiar error of In addition, the circuit position court's it that "misheard" information about County concurrent sentences Waukesha is con- by repeated tradicted fact the court what it The heard. circumstances of this such case were that no attorney alerted the court to the error because court misspeak. parties did not The for asked concurrent imposed sentences, the court sentences, concurrent impose the court intended to concurrent sentences. The seemingly misunderstood the effect of the sen- imposed thought imposing tences it it because it sentences to a concurrent 33-month of con- County. finement from Waukesha misunderstanding ¶ 95. That is inconsistent with years years the "two four out" statement found in transcript. adopt Thus, the if this court to were the position judicial simply may that errors not be corrected produces if correction an sentence, increased it could solely reverse the circuit court here based on its state- sentencing. inflexibility, ments at the initial Such how- effectively dispute authenticity ever, would of state- during ments the court about made the defendant sentencing, initial statements the made court about its during resentencing, intentions and statements the opinion postconvic- denying made in court its written explain why tion motion. It would not court went to County to CCAP check out Waukesha sentences shortly sentencing. place great after its own It would importance on the fact that sentenced in Robinson was afternoon, Burt unlike who in the was sentenced modify not its sentence so that the could

morning, on significance would the fact day. place the same It also the court from a up and rescued attorney spoke that no no on the However, significance it would place mistake. of with set dealing complicated fact that the court was that investigation put it no facts, presentence that had it to and that acted writing, sentences Waukesha 24 hours. its mistake within correct to is related the sentences 96. The confusion on during hearing from the the plea evident discussion took following exchange place 2011. The April Attorney District the court and the Assistant between (ADA): two, The recommendation for count

[ADA]: State's is Corrections, months, of that would be House five three, count one. with count consecutive to concurrent Corrections, months, three, five House of Or count to count concurrent with count two and consecutive is one, And months in the House of one. for count six treatment, for release to CJRC con- Corrections with three. secutive count two and sorry. I'm one what? THE COURT: Count was months in the House [ADA]: Count one six Corrections, treatment, release for with to CJRC three. that would be consecutive to counts two and get straight. let me I THE COURT: So see if this Count one, months, Corrections, six House of with release to CJRC, two, any other sentence. Count consecutive Corrections, months House five in the concurrent to three, any in other sentence. Counts five months the Corrections, to House of count two but concurrent one. consecutive to count Yes. [ADA]:

THE COURT: I'm confused. I

[ADA] think the bottom-line is that —-for the three case, for, asking essentially, [we're] counts this months the of House Corrections— Well, THE any COURT: that doesn't make sense. You want me to run all counts concurrent with the sen- — — tences 08-CF-518 08-CM while on So the one you're saying concurrent, you're hand all counts also saying counts one and counts to be three consecutive.

Why you don't take guys pass a moment and this Take a case. moment to set this out because this is getting extremely confusing. I you're don't know what asking me to sentence .... Eventually,

¶ 97. the ADA the told court that the sentence was to be the concurrent with sen- Waukesha willing change tences, said, she "I'm but also offer the lengthy to a sentence, House concurrent to the sentence just in the three which cases, in she It was revoked." is true the confusion related to three from counts County plea hearing the Milwaukee incident, but judge having demonstrates that the time hard wrapping his head which around sentences were concur- rent and which ones were consecutive. It is understand- linger able that confusion would until the hearing less than month later. This case, is a close but I come down on judge. psychoanalysis

side It does not take phenomenon "mishearing" understand that is hearing. misunderstanding, from different not A when upon very quickly, prevent acted should not a court correcting from a sentence. Such a correction does not jeopardy violate double and is a reasonable result in this case. respectfully I concur.

¶ stated, 99. For the reasons {dissent- C.J. ¶ ABRAHAMSON, SHIRLEY S. 100. separate ing.) doc- sets forth two case law Wisconsin judicial change governing in a a sentence: double trines jeopardy and reflection.1 majority opinion the

¶ addresses 101. The argument jeopardy constitutional double defendant's the reflection doctrine.2 and denies that it addresses majority opinion constitutional double admits that The jeopardy protection the doctrine both reflection concerning judicial change apply of a sen- a "cases opinion majority Nevertheless, the sometimes tence."3 of avoids the term and addresses the act reflection but judge "deliberating," ¶¶ 41, as to reflection refers Paragraphs 42 43 44, 48, or similar words. majority opinion openly address the defendant's reflec- arguments. tion application

¶ of the 102. I examine the reflection present case, circuit court in which the doctrine changed circuit court the terms of a sentence after the imposed I a sentence.4 would vacate second valid original sentence and reinstate the sentence. 1See, State, 54, 58, 2d N.W.2d e.g., Scott v. 64 Wis. 218 350 (1974) (overturning change a sentence on reflection in a not grounds "(jleopardy even constitutional sense has when attached"). yet 2 ("We cite . majority op., 50 do not or discuss . . See ."). . . jurisprudence numerous cases in our reflection doctrine . 3Majority op., 4 change in an variously The case law to such a refers interchangeably "amending valid sentence as the sen Scott, Foellmi, 57; "resentencing," tence," 64 2d State v. Wis. at (1973); change 57 2d 205 144 "a in an Wis. N.W.2d Foellmi, sentence," 582; modi imposed 57 Wis. 2d at "sentence 544, 546, fication," Hedgwood, 113 2d State v. Wis. N.W.2d increase," Scott, 59; (1983); 2d 64 Wis. at "sentence I address the reflection doctrine because every stage the reflection doctrine has been raised at litigation; typically because this court decides cases grounds grounds on other than constitutional when it presents can;5 the because reflection doctrine difficul- litigants courts; ties for and the and because the reflec- dispositive tion is doctrine in the instant case. By neglecting ¶ 104. doctrine, the reflection majority opinion ignores important and, an in the present dispositive present case, issue muddles the law on the reflection doctrine. Because I conclude that authority overstepped the circuit court its limited under existing change to reflection law the sentence it imposed, I dissent. response my

¶ dissent, 105. to the concurrence (but acknowledges that the reflection doctrine alive is well) germane present not in Wisconsin and is law to the case. The concurrence "reflects" on the reflection doc- provide support trine "to for the court's decision." Con- ¶ 52. currence,

¶ The 106. concurrence does not discard- advocate ing Instead, the reflection doctrine. the concurrence distinguish recasts the doctrine to between an "authentic (which may mistake that be corrected" the concurrence case) happened change concludes the instant and "a of position requires based on reflection a new factor as prerequisite ¶ Concurrence, modification." 84. reduction," Wuensch, 467, 472, "sentence State v. 69 Wis. 2d 230 (1975); change," Wuensch, N.W.2d or a "sentence 69 Wis. 2d at 480. I word "change" use the to include all terms. The these majority opinion similarly judicial change to "a of refers Majority op., sentence." 49. ¶ 5 See, e.g., Advertising, City Adams v. Outdoor Ltd. Madison, 104, WI 294 Wis. 2d 717 N.W.2d 803. My is of the reflection doctrine discussion

organized as follows: doctrine. positions

I. on recollection parties' The and its II. the reflection doctrine An examination of present case. application position on the reflection doc- III. The concurrence's trine. doctrine. prospects

IV reflection The future I presented The doctrine has been reflection by parties The "creat[ing] and the amicus.6 to this court both majority opinion is that the dissent asserts developing] arguments party's Yet on a behalf."7 again parties issue time and and the addressed this fully before this court. reflection issue parties Both addressed the issue of reflec- 109. court. The brief tion in their briefs in this defendant's in notes impermissibly the increase the defendant's "was that guessing the court's second of based on against The defends its sentence."8 State's brief stating charge reflection, of "the court modify impermissibly not the sentence this case did "9 'upon reflection.' denying The court's order circuit post-conviction appealed motion was to the defendant's 6 spent argument of oral and their briefs parties The most unpublished per double issue. The short discussing jeopardy only appeals curiam of the addressed the double opinion jeopardy issue. 7 Brown, op., (quoting v. No. Majority 50 State (Feb. J., 2011AP2907-CR, 26,2014) unpublished (Bradley, order dissenting)). 8 at 6. Defendant-Appellant-Petitioner Brief 9 at Plaintiff-Respondent Brief of appeals. judgment court of Both the of conviction and post-conviction order are before this court for post-conviction review. The motion noted that permissible modified sentence "is neither nor fair and jeopardy constitutes double and modification of the sentence without a new factor."10 (amicus) Additionally, nonparty

¶ 111. brief of Lawyers the Wisconsin Association of Criminal Defense length. discussed the "reflection" issue at argument, ¶ 112. At oral the issue of reflection emerged again. Defense counsel noted:

I don't anything believe that there's suggesting, or to proof meet that burden of in this record. I think there only are judge Day comments of the on Two that any make suggestion of whether or not it was reflec- does, think, tion. ... It I kind of sound reassessing like and reweighing some of the factors insofar as he I sentence, misunderstood the nine-month don't but any believe that evidence was introduced into the record point at that suggest would it was not reflection.11 argument ¶ 113. The State its oral before this "[R]eflection court stated: is a factor that can be [State considered addition Jones, to the v. 2002 WI App 208, Wis. 2d 650 N.W.2d double jeopardy] you factors. I think can look what the sen tencing, you the record, can look to the time it took for Robinson, State v. 11-CF-288, Case No. Post-conviction (Milwaukee Motion To Original Ct., Restore Sentence Cnty. Cir. 2011). 14, Nov. 11 arg. 24:48-25:28, Oral available at at http://www. wicourts.gov/supreme/scoa.jsp?docket_number=2011ap2833& (last begin_ date=&end_date=&party_name=&sortBy=date 2014) added). 2, visited June (emphasis See the defendant's argument, reflection discussed at 40-41 of majority the ¶¶ opinion.

399 you to whether resentence, to and can look the court impermissibly The court reflected."12 State the trial you you "[W]hat know, is, well, can discuss continued: argument I there reflection. is that is no do the State's issue, address because think this court that should prior appellate in the courts have discussed cases imper- jeopardy trial court context whether the double missibly imposing sentence, reflected in resen- its recognized impermis- openly The State tence."13 change in reflection would bar the circuit court's sible imposed present in the case. the sentence erroneously majority opinion The asserts arguments regarding the reflection doctrine are that no Majority op., majority ¶¶ the court. The before 49-50. "do[es] opinion discuss . declares that it not cite or . . jurispru the numerous cases in our reflection doctrine very Majority op., ¶ Nevertheless, ." dence . . . parties majority opinion cases the and the discuss involved reflection doctrine. See State v. Gruetzma cher, ¶55, 38, 585, 2004 WI 271 Wis. 2d 679 N.W.2d533 (discussed 33-40); majority op., ¶¶ Burt, at State v. App ¶¶ 14-15, 2000 WI 237 Wis. 2d 614 (discussed 35-39). majority op., By ¶¶ 28, 42 at N.W.2d denying addressing doctrine, that it is the reflection goals finality majority opinion our contravenes fairness, casts doubt the continued fundamental on vitality doctrine, undermines, reflection if adopt long standing overrules, not numerous cases of ing the reflection doctrine.14 12 arg. at Oral 1:00:24-1:00:44. arg. at Oral 1:01:40-1:01:56. herein, long In addition the cases cited line of cases question it is for a appropriate addresses of when circuit change a it has imposed. valid sentence

II I turn now to an of the reflec- explanation ¶ tion doctrine and its application to the present case. 116. The reflection doctrine is one of the aspect

¶ law that a circuit court's inherent power change sentence is a "discretionary power that is exercised within parameters."15 The doctrine prevents a defined circuit court from changing its sentence imposed "to conform the sentence to its intent."16 unspoken 117. The reflection doctrine can be traced to

¶ Foellmi, State 572, 581-82, v. 57 Wis. 2d 205 N.W.2d 144 Macemon, 662, 668, See v. State 113 Wis. 2d 335 N.W.2d402 (1983) ("The rule in inappropriate Wisconsin is that it is for a sentencing court to make a change imposed in an sentence unless new factors are made known. 'A trial court should not reduce a sentence on simply "reflection" alone or it because has thought the matter over and thoughts. has second It must base brought its modification on "new factors" to its attention.' State Foellmi, 572, 582, (1973)."); v. 57 2dWis. 205 N.W.2d144 State Martin, (1985) ("A 670, n.1, v. 121 2dWis. 674 360 N.W.2d43 trial modify solely court is not free to a sentence on reconsid eration and change reflection and a deliberate of mind. See Scott State, 54, 58-60, (1974)."); v. 64 2d Wis. 218 N.W.2d350 v. State (1987) ("In Perry, 92, 113, Scott, 136 Wis. 2d 401 N.W.2d748 court made clear that a court should not increase a sentence on ' [Scott, 59, 350."); ] "reflection" alone.' 64 Wis. 2d at 218 N.W.2d Grindemann, 106, App 21, 632, State v. 2002 WI 255 Wis. 2d ¶ (overturning 648 N.W.2d change 507 a circuit court's in a may merely sentence because "it not reduce a upon sentence [Wuensch, thoughts. 480; 'reflection' or second 69 Wis. 2d at] (1974)"). State, 54, 59, v. Scott 64 Wis. 2d 218 N.W.2d350 15 Ninham, 33, 88, 335, State v. 2011 WI 2d 333 Wis. 797 Crochiere, 78, 12, (citing N.W.2d 451 State v. 2004 WI 524) added)). 57, 2d (emphasis Wis. 681 N.W.2d 16Scott, Crochiere, 64 Wis. 2d at 60. See also State v. 12, WI 273 Wis. 2d 681 N.W.2d524. changed a circuit Whether court has a sentence it has imposed question on reflection is a for law this court.

(1973), may which held that a reduce or modify imposition if after its new factors sentence bearing known, are made but a sentenc- on ing a 'reflection' court should not reduce sentence "on simply thought alone or because it has the matter over thoughts." Foellmi, and has second 57 Wis. 2d at 582. recognizes ¶ 118. The that a case law may change imposed a sentence that it valid has variety can, It for a example, change of reasons other than reflection. for imposed it

a valid sentence has be- factor,17 cause of a new or for erroneous exercise of upon that the sentence discretion based its conclusion unduly unconscionable,18 or it was impossible harsh or because is carry original sentence,19 out the or to correct formal errors.20 or clerical change

¶ In addition, a circuit court can imposed comport valid, sentence to with the circuit intention, court's initial when circuit court's initial appears original proceed- intention ings on the record of the 21 For a discussion sentence modification and the reflection doctrine, Comment, Jeffrey Kassel, see Sentence Modification Courts, by 195, Wisconsin Trial 1985 Wis. L. Rev. 200-03. 17 (1975). State, 280, 234 See Rosado v. 70 Wis. 2d 69 N.W.2d 18 ("The Wuensch, 69 Wis. 2d at 478-80 trial court cannot change the upon indulge mere reflection or in 'shock However, perceive why treatment.' we no valid reason a trial permitted court should not be to review a sentence for abuse of upon unduly discretion based its conclusion the sentence was unconscionable."); Harbor, 28, harsh or see also State v. 2011 WI n.8, (citing 35 333 Wis. 2d 797 N.W.2d828 Wuensch for the proposition). same 19 546, 555-56, Sepulveda, State v. 119 2dWis. 350 N.W.2d (1984) 96 State, Hayes 93, 101-01, v. 2d 46 Wis. 175 N.W.2d 625 (1970) (overruled part by Taylor, State v. 60 Wis. 2d (1973)). N.W.2d 873 21Scott, 64 2d at Wis. 59-60. carefully explained court has 120. This that original of the circuit court's intention must be evidence original proceedings in the record of the if a circuit change court is to a sentence to conform to its appellate a rule enables an intention. Such court to inquiring authenticity into the of a circuit avoid court's sentencing proceeding at a second assertion of its original proceedings. intention at the As this court explained: clairvoyant say we and able to "Were for every judge really certain case what the trial 'in- might investigate judge's [court tended,' this the trial Being intentions]. however, mere mortals we must undertakings, refrain from such delicate and we refuse procedure encourages in- sanction such an quiry."22 Along majority opinion lines, these

urges "taking judges at their a word is fundamental legal system," assumption built into our and that in "the contrary, absence of clear evidence to the we decline to assign improper part motive on the of the circuit court." Majority op., ¶ 48. The reflection accom- doctrine exactly plishes goal majority opinion espouses. the the appellate

¶ doctrine, 122. Under the reflection an gauge explana- court does not whether a circuit court's resentencing tion at is an accurate statement of the original circuit court's intention. paradigmatic application

¶ the 123. The of reflec- requirement contemporaneous tion doctrine and the of support evidence in the record to original the circuit court's State, intention is found in Scott v. 64 Wis. 2d (1974), 54, 60, 218 350 one of the seminal N.W.2d reflection cases.23

22 (citations omitted). quotations Id. at 59 Scott, jeopardy a 2d at Scott was not double case. Wis. 58. charged Scott, In defendants were with 124. two robbery. defendant, Scott, Calvin was The first

armed years prison. up in The second to five sentenced up Porter, sentenced to to ten defendant, James was already serving years prison. however, Scott, in was five-year prison Thus, another crime. sentence for years total of ten was sentenced to a defendant Scott prison crimes while defendant Porter was for two years only for one crime. to ten but sentenced sentencing this differ- The court realized driving home after ence in the two sentences while day, sentencing the sentenc- the defendants. The next ing defendant Scott back to court to be court ordered hearing change sentence, At the resentenced. explaining that it did not intend to have circuit court years single ten for a crime and one defendant serve years crimes; for such a have another serve ten two resentencing, not result, the circuit court at "was said community." Scott, 64 Wis. 2d at 58. fair to the supreme Scott, court reinstated the sentencing original concluding sentence, that when a unintentionally imposing sentence, an erred appellate engage inquiry court would not the delicate examining sentencing intention of the Rather, the court concluded that because court. Scott to increase the sentence court's decision unspoken attempted to conform the sentence to its intention, based on the increase prohibited. reflection and was explained: ¶ 127. The Scott that A review of the record the instant case shows solely the decision to increase the sentence was based on "reflection." Here the court amended the sentence so unspoken the sentence to its intent.. .. as to conform 404 . .. be re- trial court's amended sentence must [T]he original and the sentence ... re-instated. versed Scott, 2d 64 Wis. at 59-60. ap-

¶ 128. Numerous cases have reiterated and holding: change plied A court cannot the Scott original intention, sentence to conform to its unless original demonstrates that intention.24 record ¶ that 129. When the record demonstrates changed origi- sentence conforms to the circuit court's impermissible intention, no reflection has occurred. nal example, App Burt, 126, v. 2000 237 For State WI 42, the circuit court's notes 610, Wis. 2d 614 N.W.2d sentencing proceeding from the first demonstrated the original intention for the duration of the sentence and judge "slip tongue"25— had a of the that the circuit court say one at is, that the circuit court meant to word original sentencing proceeding and said another change The in the sentence was therefore word instead. upheld Burt, 610, 237 2d under the Scott test. Wis. ¶ 15. By in the instant case contrast, record

fails to demonstrate that the court's initial intention longer Indeed, the circuit court in the was sentence. present apparently acknowledged case that its explaining record, intention not in the that it was changing to its the sentence to conform the sentence longer imposed: unspoken intention that a sentence be sentencing hearing in- Yesterday afternoon we had a of the hear- volving [the defendant]. At the conclusion 24 Kluck, See, Harbor, 53, 35; 2d State v. 210 e.g., 333 Wis. Wuensch, 1, (1997); 6-7, 69 Wis. 2d at Wis. 2d 563 N.W.2d 468 Burt, 610, App State v. 237 Wis. 2d WI 614 N.W.2d 42.

ing subsequent [circuit court] thereto the did some split I a mistake. The research and I realized made yesterday I did not reflect this proposed sentence far a fair sentence in this case. Court's intent as as present ¶ in the case 131. The circuit thinking changed when, after the initial sentence doing it research, sentence over and some decided that unspo- original sentence did not conform with its ken, The circuit court stated it unstated intention. imposed was not came to realize enough. harsh differently,

¶ in the 132. Put the circuit court present that the case came to the conclusion have to be increased in order to meet its sentence would goals.26 That intended but unstated reason- by ing exactly reasoning prohibited is the kind of reflection doctrine.

Ill critiques aspects ¶ 133. The concurrence three the reflection doctrine:

(A) The initial reflection cases relied on cases with Concurrence, different facts. 60-74. ¶¶ (B) jeopardy Double out "make[s] Scott case respect quickly-addressed judicial moded with mis Concurrence, takes.' 79.

(C) changes The concurrence the reflection doc- rely trine on what concurrence characterizes as psychoanalysis mind-reading to determine a circuit Concurrence, unspoken intention. court's Burt, 2d See 237 Wis. A respect ¶ 134. With to the concurrence's first cri- explicitly tique, the Scott court stated that it was by relying adopting on the ratio- the reflection doctrine past nale of cases with different fact scenarios.27 The doing. Regardless it of the Scott court knew what was hindsight persuasiveness concurrence's view of the of ¶¶ cases, concurrence, 66-70, see or its the seminal analysis positions individual of the motivations holdings justices, recognizes the concurrence that the good A and Foellmi are law in Wisconsin: circuit Scott "amending] from the sentence so as to court is barred unspoken Scott, 64 conform the sentence to its intent." 2d at 59-60. Wis.

B respect ¶ 135. With to the concurrence's double jeopardy argument, in our case law has it been nowhere prin suggested application jeopardy that the of double ciples abrogates the need for the reflection doctrine. implicitly if Indeed, the concurrence concedes that even jeopardy DiFrancesco, the double case of United States v. (1980), application of the 117, 133-37 449 U.S. limits the impor doctrine, the reflection doctrine retains reflection changes imposed valid, tance whenever a circuit court ¶ Concurrence, sentence. 84. ‘¶ Burt, 2d The concurrence cites 237 Wis. 136. ¶¶ 12-15, the limits of the reflection to show analyze doctrine,28 Burt demonstrates that courts but 27 Leonard, Scott, v. State (citing 2d 64 Wis. at 58-59 State, (1968); Denny v. 461, 473, Wis. 2d 159 N.W.2d 577 Foellmi, 541, 544, (1970); 2d at 2d 57 Wis. Wis. 178 N.W.2d 38 582). 28Concurrence, 88-91. ¶¶ jeopardy and reflection doctrines and both the double independently. apply each test

C applica- respect the concurrence's 137. With present case, doctrine to the tion of the reflection uphold the concurrence modifies the reflection test to circuit court's sentence in the instant case as fol- changed A an lows: because of "authentic judicial sentencing" permissible, mistake in is even though proceedings the record of the initial does not the circuit intention. Con- demonstrate court's currence, justifies The its modified re- concurrence requirement,

flection to eliminate the but at test record psychoanalysis the same time seeks to avoid the use of authenticity mind-reading "dispute and the of. . . statements the court made about its intentions . . . ." ¶ Concurrence, 95.

¶ 139. Yet the concurrence's modification of the appellate trap in reflection doctrine forces an court the psychoanalyzing reading of the mind of the circuit court. long,

¶ 140. The concurrence has constructed a engaging mind-reading in involved narrative to deter- original present mine the circuit court's intention the case and to conclude that the circuit court made an judicial authentic mistake. According

¶ [circuit] concurrence, 141. to the "the seemingly misunderstood the effect of the sen- imposed," ¶ concurrence, 94; tences it was in "confu- during original sentencing proceeding, sion" the concur- wrapping [its] ¶¶ rence, 96, 97; and had "a hard time head around" which sentences were concurrent and ¶ Concurrence, which were consecutive. 97. Despite hearing ¶ 142. the circuit court's and cor- rectly repeating the defendant's various sentences at original sentencing proceeding, ¶ concurrence, the gamely attempts to read the circuit the concurrence origi- court's mind to find evidence of confusion at the sentencing hearing regarding what the circuit court nal "thought imposing." ¶ Concurrence, it was 94. exactly type psychoanalysis

¶ 143. This is the expressly that the concurrence claims to avoid. Concur- puts appellate rence, 98. The concurrence courts position having the post-sentencing whether a circuit court's assess original at the

assertion of mistake sentencing is "authentic" or not. existing In contrast, reflection doctrine appellate psychoanalyzing

allows an authenticity court to avoid at a second

of the circuit court's assertion sentencing original sentencing by of a mistake at the requiring change that the in the sentence conform with expressed in the circuit court's intention as original proceedings. of the record appellate Scott, the court noted in courts As rely are mind-readers and must on the record to not original intention.29 The record assess the circuit court's convincing evidence that the must contain clear change mere in the sentence is not reason for contemporaneous Burt, In the circuit court's reflection. original inten- the court's sealed notes demonstrated present Scott, case, tion.30 as change unspoken on its court based the of the sentence original sentencing proceedings and intention at the pass the test.31 fails to reflection 29 Scott, 120, supra. 64 Wis. 2d at 59-60. See ¶ 30Burt, 31Scott, 610, 237 Wis. 2d at 4.¶ (vacating defendant's new 64 Wis. 2d at 59 only reinstating original when the sentence and sentence 409 I conclude that the circuit 146. Consequently, changing court erred in the case sen- present tence.

IV states far stricter limitations Many impose than These changes on trial courts' sentence Wisconsin. to limit states do not need or have a reflection doctrine a trial a sentence.32 authority change court's 148. This court has with circum- grappled under a circuit court a valid may change stances which after it is The courts have imposed. appellate sentence decided sentence involving changes.33 numerous cases The has also addressed this issue in legislature crafting statutes sentence regarding changes.34 the circuit from evidence of court's own statement at the court's intention came resentencing hearing). 32At adopted, the time the reflection doctrine was Wiscon- only modify circuit permitted sin was sentence after the state that courts to begun had or the term had ended. Kassel, 16, supra Attorney See note at 200-03. Kassel notes: 1970, majority Prior to Wisconsin followed common-law rule power modify judgment that the of the trial court to its or sentence begun ceases when the sentence has or the term of the court has expired. long-standing power This limitation on the of the trial rejected by Supreme Hayes court was the Wisconsin Court in v. (1970)]. 93, [46 State Wis. 2d 175 625 N.W.2d Id. at 200. general strictly prevents The rule in other states more trial Russ, changing courts from a sentence. See Lee R. Power of Court, Term, During Severity

State Sentence—Modern Same To Increase of Lawful (1983 Status, 3,§§ 26 4th A.L.R. & 2013). Supp. 33 Harbor, (analyzing See 333 Wis. 2d 35-51 our ¶¶ history analysis). court's of "new factor" Hayes, (holding See 46 Wis. 2d at 106 the new 90-day criminal code changes). mandated a window for sentence modify ¶ If the court wishes to overrule or 149. so, it do rather than doctrine, reflection should contradictory confusing as it does and outcome create a present in the case. might

¶ conclude that the reflec- The court good policy, too difficult or that it is tion doctrine is not apply, should be abandoned. and that the doctrine to bright-line rule, create a 151. Or the court could holding motion or on court, circuit on its own that a may change imposed party, valid, of a motion imposition say, a fixed amount of time after within — 48 hours.35 overruling or alter- If, however, the court is adopting applying

ing and the numerous cases In- intention. doctrine, it should state its reflection 35 requirements, courts imprecise of durational areas time limits in the interests occasionally bright-line set recently con Supreme United Court certainty. The States Shatzer, 98, 559 U.S. 130 S. Maryland v. fronted the issue (2010), time limit after an dealing with the Ct. 1213 when interroga can recommence police of counsel that invocation tion: question impractical for clarifica- leave the answer to that

It is case-by-case adjudication; officers law enforcement in future tion beforehand, know, certainty when renewed with need certainly this interrogation And it is unusual for is lawful. while action, governing police it precise is forth time limits Court to set 44, McLaughlin, County 500 U.S. v. not unheard-of. In Riverside 1661, (1991), specified hours as L. we 111 S. Ct. 114 Ed. 2d 49 comply require- police with the must the time within which Pugh, 43 L. Ed. 2d 420 U.S. 95 S. Ct. ment of Gerstein v. brought (1975), person be without a warrant that a arrested probable magistrate cause for continued to establish before detention. Shatzer, on a in Shatzer settled 559 U.S. at 110. The Court balancing various 14-day period, weighing after time factors. majority opinion existing

stead, the muddles the doc- claiming not to it. trine, while address forth, 153. For the reasons set I I dissent. would proceedings present hold that the in the record of the case does not demonstrate that the circuit court in- imposed creased the sentence to conform to the circuit Rather, court's intention. the record shows the initially circuit im- court reflected on the sentence posed: records; research; it checked it did and it changed the sentence it concluded because imposed sentence it was not the one it intended to impose imposed. or should have

¶ 154. Indeed the concurrence effect concedes permit that the record is not sufficient to a sentence change existing modify under law and must the reflec- uphold changed tion doctrine to sentence in the present case. Adhering

¶ 155. to the current I reflection, law on would vacate the second sentence and reinstate the original sentence.

¶ 156. I am authorized to state that Justice ANN joins opinion. WALSH BRADLEY this notes clear, are and I did misspeak, fully the court is -very little time having passed in this aware — matter —as to original was, what its quite intent honestly, based on what thought the court imposed it —this sentence was somewhat less than the sentence receive, that this defendant was to the court believing this defendant aggressive was a more actor in the matter, quite candidly. ISo understand whenever there a change is of this kind, eyebrows it's bound to raise concerns, and raise but the court impose intends to the sentence that it had in mind say and meant at the time of the sentenc- ing — Id. repeated 90. The court then the sentence that it imposed morning, except changed on in Burt that it 20-year attempted concurrent sentence for armed robbery 20-year consecutive sentence for at- tempted robbery. armed Id. appeals upheld 20-year 91. The court of noting increase Burt's sentence, that "the trial court speech pronouncing realized it made an error of steps Burt's sentence and took immediate to correct the judgment sentence before the of conviction was entered Id., ¶ into the record." 11. The court's "error" execut- ing by its intention was substantiated its "original notes" and its sentence of Sandifer. Would the result have been different if Sandifer had been sen- Burt's Burt so that fenced after was sentenced day day? not be corrected the same sentence could sen- involving consecutive Misstatements

Case Details

Case Name: State v. Jacqueline R. Robinson

Court Name: Wisconsin Supreme Court

Date Published: Jun 10, 2014

Citation: 847 N.W.2d 352

Docket Number: 2011AP002833-CR

Court Abbreviation: Wis.